Home / Fulltext Opinions / Supreme Court of Virginia / THE UNINSURED EMPLOYER'S FUND v. THRUSH, ET AL.



January 9, 1998
Record No. 970477





Present: All the Justices

This is a workers’ compensation case involving an employee who
was hired to work only one day for a total wage of $42 and was
killed after working a portion of the day. The case has twice
been before the Workers’ Compensation Commission (the Commission)
and the Court of Appeals. In the second round, the Commission
awarded the employee’s widow and minor child compensation at a
weekly rate of $160, based upon an average weekly wage of $240.
The Court of Appeals affirmed the award. Finding that the case
involves matters of significant precedential value, we awarded an
appeal to the Uninsured Employer’s Fund (the Fund), which became
a party to the proceeding because the employer was uninsured.

The employee, Brian Lee Thrush (Brian), a pipelayer by trade,
lived and worked in Florida. However, on December 8, 1991, he was
in Virginia for a court appearance the next day, planning to
return to Florida immediately afterward.

Reichert Painting Company, a sole proprietorship owned by
Nancy Reichert (Reichert), contracted with Cavalier Ford, Inc. of
Chesapeake to paint light poles on Cavalier’s car lot. Needing
extra help, Reichert hired Brian, a part-time painter, to work
seven hours on December 8 at $6 per hour. After about an hour and
a half of painting, Brian apparently fell from a "mobil[e] scaffold," came into contact with a high-voltage electric
line, and died a short time later of "[s]hock due to

On December 7, 1993, Brian’s widow, Clara Annette Thrush, and
his minor child, Teauna Mae (collectively, Thrush), filed with
the Commission a claim for death benefits. A deputy commissioner
entered an award in favor of the widow and child for death
benefits of $196 per week, based upon an average weekly wage of
$294, derived from the formula $6 per hour x seven hours =
$42 per day x seven days = $294 per week. Upon the Fund’s request
for review, the full Commission affirmed the award.

The Fund appealed the award to the Court of Appeals (Thrush I).
In an unpublished memorandum opinion, the Court of Appeals
reversed the Commission’s decision, stating that "a work
week of forty-nine hours was inexplicably adopted by the
commission, resulting in a purely conjectural calculation of
[Brian’s] average weekly wage." The Court of Appeals
remanded the case to the Commission "for redetermination of
the award in accordance with an average weekly wage based upon a
forty-hour work week at $6 per hour."

Upon remand, the Commission interpreted the Court of Appeals’
action as a "remand . . . with directions to find
that the average weekly wage of the deceased employee was
$240." Accordingly, the Commission entered an award in the
amount of $160 per week, based upon an average weekly wage of
$240, derived from the formula $6 per hour x forty hours per week
= $240.

The Fund appealed this award to the Court of Appeals (Thrush
). The Fund took the position that "the amount of the
average weekly wage [was] not determined by the unpublished
opinion [in Thrush I]." However, in an unpublished
per curiam opinion, the Court of Appeals ruled that the Fund
sought to raise in Thrush II "the precise issue that
was previously determined [in Thrush I]" and,
therefore, that the "law of the case" doctrine barred
the court from reexamining the issue and "mandate[d] affirmance of [the Commission’s award]." Hence, the Court of
Appeals did not reach the merits of the Fund’s appeal.

As noted in the Court of Appeals’ opinion in Thrush II,
the "law of the case" doctrine provides as follows:

Where there have been two appeals in the same case,
between the same parties, and the facts are the same, nothing
decided on the first appeal can be re-examined on a second
appeal. . . . It differs from res judicata
in that the conclusiveness of the first judgment is not
dependent upon its finality.

American Filtrona Co. v. Hanford, 16 Va. App. 159, 164,
428 S.E.2d 511, 514 (1993) (quoting Steinman v. Clinchfield
Coal Corp.
, 121 Va. 611, 620, 93 S.E. 684, 687 (1917)).

We must first determine whether the Court of Appeals’
"law of the case" ruling is binding upon this Court and
bars its consideration of the merits of the case. If this
question is answered in the affirmative, our inquiry is at an

On this question, Thrush’s counsel stated in oral argument
before this Court:

The Court of Appeals correctly said that [the holding of Thrush
] is the law of this case. There was no appeal taken by
[the Fund] from the initial determination of the Court of
Appeals of Virginia [in Thrush I], which essentially
told them what the computation of the average weekly wage
could have been, and I think that would have been the
appropriate time for [the Fund] to bring that argument before
this Court. I think they are too late to try to bring it to
you today.

We disagree with Thrush. The Fund was not bound to appeal from
the Court of Appeals’ decision in Thrush I. This is made
clear by Code ? 17-116.09,
one of the Code sections enacted as part of the legislation
creating the Court of Appeals. Code ? 17-116.09 states as

A judgment, order, conviction, or decree of a circuit
court or award of the Virginia Workers’ Compensation
Commission may be affirmed, or it may be reversed, modified,
or set aside by the Court of Appeals for errors appearing in
the record. If the decision of the Court of Appeals is to
reverse and remand the case for a new trial, any party
aggrieved by the granting of the new trial may accept the
remand or proceed to petition for appeal in the Supreme Court
pursuant to ? 17-116.08.

While the Court of Appeals in Thrush I may have told
the parties what the computation "could have been," the
court did not modify the Commission’s award as Code ? 17-116.09 permits but
reversed the award and remanded the case with directions for the
Commission to make a new award. The Fund was entitled to accept
the remand, rather than petition for an appeal to this Court, and
to attempt on remand to persuade the Commission to make an award
favorable to the Fund. As it happened on remand, the Commission
made an award that was not favorable to the Fund. This prompted
the Fund to appeal the award to the Court of Appeals in Thrush
and then to seek an appeal to this Court, a course of
action which, in our opinion, is permissible under Code ? 17-116.09.

To say, as Thrush would have us say, that the Court of
Appeals’ application of the "law of the case" doctrine
is binding at this stage of the appellate process would mean
that, by accepting the remand, the Fund effectively waived its
right to seek an ultimate appeal to this Court from an
unfavorable decision following the remand. In our opinion, this
is not the result the General Assembly intended by its enactment
of Code ? 17-116.09.

This brings us to the merits of the case. The Fund contends
that the Commission erred in calculating the average weekly wage
in this case "as if the worker was a full time, forty hour a
week employee." On the other hand, Thrush contends that the
Commission’s "determination that [Brian’s] average weekly
wage was $240.00 is fully supported in both fact and law."

Thrush notes that the purpose "’for calculating the
average weekly wage is to approximate the economic loss
suffered by an employee or his beneficiaries.’" (quoting Bosworth
v. 7-Up Dist. Co.
, 4 Va. App. 161, 163, 355 S.E.2d 339, 340
(1987)). Thrush then says that, to achieve this purpose, the
Workers’ Compensation Act "gives the Commission considerable
discretion in computing an employee’s average weekly wage."

Thrush first points out that Code ? 65.2-101(1)(a)
defines "average weekly wage" as "[t]he earnings
of the injured employee in the employment in which he was working
at the time of the injury during the period of fifty-two weeks
immediately preceding the date of the injury, divided by
fifty-two." Thrush tacitly concedes that this method of
computing average weekly wage is inapplicable. Thrush emphasizes,
however, that the section goes on to permit an alternative method
by providing that if it is impractical to compute the average
weekly wage "as above defined" because of the shortness
or the casual nature of the employment, "regard shall be had
to the average weekly amount which during the fifty-two weeks
previous to the injury was being earned by a person of the same
grade and character employed in the same class of employment in
the same locality or community."

However, Thrush submitted no evidence to the Commission
concerning the earnings of a person engaged in similar
employment. Indeed, the Court of Appeals stated in its Thrush
opinion that the record of the original Commission hearing
was "silent with respect to wages of similarly situated
employees during the fifty-two weeks prior to [Brian’s] injury," and the record of the remand hearing is equally

Thrush next points to Code ? 65.2-101(1)(b)
as providing alternative methodologies for computing average
weekly wage. This section provides that "[w]hen for
exceptional reasons the [formula prescribed by ? 65.2-101(1)(a)] would
be unfair either to the employer or employee, such other method
of computing average weekly wages may be resorted to as will most
nearly approximate the amount which the injured employee would be
earning were it not for the injury."

At one point on brief, Thrush indicates that the "other
method" the Commission resorted to in computing Brian’s
average weekly wage was to take "the amount of wages he was
being paid by Reichert per hour and projecting those wages over a
forty-hour work week." However, Brian was employed by
Reichert to work only one day, not a forty-hour week, so an
essential component of the Commission’s projection breaks down
upon analysis.

At another point on brief, Thrush indicates the Commission
could have computed Brian’s average weekly wage by combining the
wage he was to earn as a painter for Reichert with the wage he
earned from his previous work as a pipelayer. For example,
responding to the Fund’s argument that the long-standing
"dissimilar employment rule" in workers’ compensation
law does not permit such combination when, as here, the previous
work is dissimilar, Thrush states that "it is clear under
any reasonable view of the plain language of [Code ? 65.2-101(1)(b)] and
the particular facts of this case that the Fund’s assertion that
dissimilar employment prevents extrapolation of a daily wage to a
weekly wage is entirely erroneous."

Thrush’s argument suggests that Code ? 65.2-101(1)(b) has
somehow discredited the dissimilar employment rule. We reject the
suggestion; the rule is alive and well in workers’ compensation

The rule finds its origin in the decision of the Industrial
Commission (now the Workers’ Compensation Commission) in Thompson
v. Herbert
, 4 O.I.C. 310 (1922). There, the Commission
considered the same statutory language that is now contained in
Code ? 65.2-101(1)(b).
The Commission held it was not permissible to combine wages
earned in dissimilar employment because such action would
contradict the definition now contained in Code ? 65.2-101(1)(a) of
"average weekly wage" as "the earnings of the
injured employee in the employment in which he was working at
the time of the injury
." Id. at 316.

This Court considered the propriety of combining dissimilar
employment in Graham v. Gloucester Furniture Corp., 169
Va. 505, 194 S.E. 814 (1938). There, the employee was injured
while working in a part-time job. In order to obtain the maximum
rate of workers’ compensation, the employee sought to have his
part-time wages combined with wages earned in his regular
full-time employment. The Industrial Commission fixed
compensation at the minimum rate. Although not mentioned in the
opinion, what is now Code ? 65.2-101(1)(b)
was then part of the workers’ compensation law. This Court
affirmed because the evidence supported the Commission’s finding
that the employee’s part-time work "was not the same
character of work as that performed" in his full-time
employment. Id. at 510, 194 S.E. at 816.

More recently, in Hudson v. Arthur Treachers, 2 Va.
App. 323, 343 S.E.2d 97 (1986), involving the same factual
pattern as Graham, the Court of Appeals focused directly
upon Code ? 65.2-101(1)(b)
in considering the question whether its language permits
"the combination of wages earned from concurrent dissimilar
employment in determining the claimant’s average weekly
wage." Id. at 326, 343 S.E.2d at 99. The Court of
Appeals answered the question in the negative, observing that
because the Commission has consistently applied the dissimilar
employment rule for many years, it must be presumed "that
the legislature was aware of, and is in agreement with, this
practice." Id. The Court of Appeals also made an
observation, with which we concur, that this Court’s holding in Graham
"represents an acknowledgement and approval of the
Commission’s practice of denying the combination of wages earned
in dissimilar employment for purposes of determining a claimant’s
pre-injury average weekly wage." Id. at 327, 343
S.E.2d. at 99.

Hence, although the Workers’ Compensation Act provides several
permissible methods of computing the average weekly wage, none
supports the average weekly wage determination made by the
Commission in this case. This leaves for consideration only the
$42 Brian was to be paid for his one day of work for Reichert as
a basis for computing the compensation payable to Thrush.

Accordingly, we will reverse the judgment appealed from and
remand the case to the Court of Appeals with directions to remand
the matter to the Commission. The remand to the Commission shall
direct that it fix the amount of compensation payable to Thrush
based upon the actual weekly wage of $42 and consistent with the
views expressed in this opinion.

Reversed and remanded.